Diplomacy in Space

The Final Frontier of International Law

January 17, 2014

Questions concerning the ownership of space are nothing new. Several Yemeni men claim that the mythologies of the ancient Himyaritics and Sabaeans justify their inheritance of Mars; in 1996, a German man argued that the Prussian emperor Frederick the Great presented the moon as a gift to one of his ancestors in 1756; and in 1949, a man named James Magnum attempted to register a deed for all of outer space with the Recorder of Deeds and Titles of Cook County, Illinois. The difference today is that states are becoming more and more capable of making good on their claims to outer space.

Today, the ‘scramble for space’ occurs at least nominally for scientific reasons, not for political ones. However, scientific exploration of outer space is by no means free from geopolitical implications or motivations.

One project in particular illustrates the complex issues surrounding space exploration. Over the past year, the US National Aeronautics and Space Administration (NASA) has made public plans to capture an asteroid and bring it into the moon’s orbit. The US civilian space agency plans to launch a special spacecraft equipped with a ‘capture bag’ to net an asteroid. The spacecraft will then swing back around the moon and keep the asteroid in orbit there. The undertaking may cost as much as US$2 billion. If everything goes according to plan, it will occur sometime between 2017 and 2025. The spacecraft’s journey to the asteroid will take around 18 months, and the spacecraft will then spend three and a half years dragging the asteroid into orbit. Paul Chodas, senior scientist at NASA’s Near-Earth Object Program Office, says that NASA has identified two to three asteroids that are good candidates for capture. Each is between seven and ten meters wide and weighs around 500 metric tons. A 2012 California Institute of Technology report calls this project “mankind’s first attempt at modifying the heavens.”

There are several reasons why capturing an asteroid is useful. Handpicking an asteroid to bring close to Earth would allow scientists to study an interesting or unusual asteroid in order to learn more about the makeup of outer space, the solar system, and the universe. NASA or private companies could mine a captured asteroid for valuable materials. Most importantly, the technology to capture an asteroid could be used to deflect an asteroid from a collision course with Earth; the explosion of the Chelyabinsk meteor over Russia in February 2013 injured some 1,500 people, and larger meteors could do far more damage.

Although the technology appears quite useful, NASA’s plan to capture an asteroid raises important legal questions surrounding who can own space and how countries can exploit resources in space.

There are two major legal questions that arise from NASA’s plan to capture an asteroid. The first has to do with ownership of the asteroid. The most relevant legal precedent in these areas is the 1967 Outer Space Treaty, which laid the groundwork for international law in space and to which 102 countries are now party. The Outer Space Treaty established several broad principles for space exploration: it requires that activity in space be for the benefit of all countries, that all states be free to explore outer space, and that no state will appropriate space or objects in space.

Current international law based on the Outer Space Treaty clearly forbids national appropriation of objects in space. At the same time, the exclusive right to control asteroids and other space objects could be for the benefit of all nations, fulfilling another tenet of the treaty. Moreover, the treaty’s emphasis on the freedom of all states to explore space seems to support both the United States’ right to capture and exploit an asteroid, and other states’ right to the same asteroid. It is unclear what the law will say if two or more states lay claim to the same space object.

The second legal question concerns liability for the asteroid. The Outer Space Treaty also established a distinction between launched space objects and objects originating in space; states can own and are liable for objects that they launch from Earth, but they cannot own or be liable for objects originally found in space. The 1972 Convention on International Liability for Damage Caused by Space Objects also holds that states are liable for harm to other states or persons caused by space objects that they launch.

Both the 1967 Outer Space Treaty and the 1972 Liability Convention establish that states are liable for damage done to other states or persons by objects that state has launched. The law in this respect sets up a now flawed distinction between objects launched from Earth and objects found in space: a captured asteroid is a space object not launched from Earth, but clearly controlled by earthbound actors. The capture of an asteroid blurs the line between the two and may require new international agreements.

These questions are not easily resolved, which makes this an important test case for future activity in space. The way international law and treaties are applied here may determine how property rights and tort law are enforced in space. The way the international community reacts to NASA’s proposed capture of an asteroid will likely be highly formative for future international law on space.

Perhaps a useful precedent lies also in similar, but earthbound cases. The Antarctica Treaty of 1961 dealt with competing territorial claims by recognizing some existing claims but explicitly refusing to recognize any future claims. In practice, however, many powerful states have since laid claim to parts of Antarctica, and while not recognized under the Antarctica Treaty, those claims are recognized by some states. On the other side of the world, the Arctic offers little more help: because it lacks actual land, the Arctic is subject to the body of international law on the sea and to the UN International Seabed Authority.

Expansion into space shows no signs of slowing down. A joint project by Russia’s Institute of Biomedical Problems and the European Space Agency recently spent close to a year and a half and $15 million on the longest and most involved simulation of spaceflight to Mars; 3D printing is opening the door for sustainable manufacturing and living in space; and private companies, including World View Enterprises, Virgin Galactic, and XCOR Aerospace, are beginning to offer opportunities for space tourism.

Ideally, international law would shape the way the world works. In the fast-paced world of space science, though, the opposite seems to be true: the way events unfold will shape the law. As human beings get closer to colonizing Mars or to geo-engineering other planets, this body of international law will become even more important. The international community must confront the final frontier and agree on a way forward.